Building Law Monthly

In Kaye v Lawrence [2010] EWHC 2678 (TCC), [2011] BLR 77 Mr Justice Ramsay held that s12(1) of the Party Wall etc Act 1996 applies to all cases where the building owner is exercising rights under the Act and that it does not apply only to work that is being done on the adjoining owner’s land. Consequently, a building owner who carried out work on his own land within three or six metres of the boundary was caught by the Act and could be required to give security. This conclusion, which may come as a surprise to some, will significantly increase the sphere of application of the Act.

In Linklaters Business Services Ltd v Sir Robert McAlpine Ltd [2010] EWHC 2391 (TCC), [2011] BLR 108 (although note that the latter report does not contain the full judgment of the court), Mr Justice Akenhead held that the defendants had committed various breaches of contract in the redevelopment of premises leased by the claimants. The issues relating to the defendants’ liability in tort, which had taken up considerable time at the preliminary stages of the litigation, largely fell away (and in the one case where it was live, no liability was found to exist on the facts). In relation to the contractual liability of the defendants, the judgment is notable for its consideration of the circumstances in which a claimant is entitled to recover the cost of carrying out replacement works and also for the conclusion that the claimants were obliged to give credit for a contribution which they had received from their landlord towards the cost of the remedial works.

In CN Associates (a firm) v Holbeton Ltd [2011] EWHC 443(TCC), [2011] All ER (D) 217 (Jan) Mr Justice Akenhead held that the defendants had effectively reserved their position on the jurisdiction of the adjudicator and that the parties had not conferred on the adjudicator jurisdiction to decide his own jurisdiction. He then found that the defendants had established a realistic prospect of a successful defence to the claimants’ attempt to enforce the decision of the adjudicator by way of an application for summary judgment. But, the defendants having only just passed the threshold for obtaining permission to defend, Akenhead J decided that the defendants should be required to pay into court within fourteen days the full amount of the claim as a condition for giving permission to defend.